Victim surcharge 'grossly disproportionate', lawyer argues

Shaun Michael is facing $900 in mandatory victim surcharges, a punishment his lawyer argues is grossly disproportionate and a violation of the Charter rights of the Inuit man.Wayne Cuddington / Ottawa Citizen

Shaun Michael doesn’t have a job, likes to drink and lives on $250 a month. He doesn’t have a telephone, didn’t attend much school and has spent most of his life living in group homes, on the street or in shelters. The Toronto YMCA is his favourite.

Michael is also facing $900 in mandatory victim surcharges, a punishment his lawyer argues is grossly disproportionate and a violation of the Charter rights of the Inuit man whose past is marred by abuse, neglect, alcoholism and drug use.

On Tuesday, the 26-year-old Michael became the first offender in Ottawa to argue that the Conservative government’s controversial mandatory surcharge is unconstitutional. The mandatory surcharge came into effect last October as part of the government’s Increasing Offenders’ Accountability for Victims Act, and is designed to help fund victim services. The surcharge is tacked on after an offender is sentenced at a rate of $100 or $200 per conviction depending on the severity of the offence, or an amount equal to 30 per cent of any fine levied as part of the sentence.

Michael already has a suspended sentence and two years of probation after receiving credit for 93 days in jail. Michael admitted to kicking a loss prevention officer and police officer after trying to steal a bottle of rye from a downtown LCBO. He also admitted to later trying to pick a fight with a snowplow driver before putting his fist through the window of a homeless shelter. In both instances, he was extremely intoxicated.

Michael’s lawyer, Stuart Konyer, argued that the surcharge was out of proportion with the crimes. He said it also amounted to cruel and unusual punishment, and violated Michael’s right to life, liberty and security by saddling him with a surcharge he simply won’t ever be in a position to repay. The threat of jail if he didn’t pay the surcharge, and his continuing inability to ever apply for a pardon, credit or a driver’s licence because of the outstanding amount, would also hang over him, Konyer added.

The Crown argued that the surcharge is not a punishment, so it can’t be considered cruel and unusual. Even if it is considered a punishment, it shouldn’t be considered disproportionate or a violation of Michael’s Charter rights.

Prosecutor Dallas Mack argued the surcharge was an “ancillary mandatory provision” akin to a DNA order or driving prohibition, designed by the government with the laudable goal of helping to fund victim services.

Mack argued impecunious offenders only go to jail if they have an ability to pay and flat out refuse, and that offenders can request an extension of time to pay the surcharge if necessary.

“It’s not a fine for the sake of punishing an offender, it is a monetary consequence imposed for a different purpose,” he said. “The aim is to support victims, and they’ve chosen a means to do it.”

Konyer argued the imposition of the “oppressive” mandatory victim surcharge in Michael’s case serves no purpose. If the rationale of the surcharge is to enhance funding for victims, it fails when the offender has no means to pay.

“In the end, it is simply cruel. No benefit is achieved for victims, for society and certainly for Mr. Michael,” said Konyer.

Konyer argued that it was the intent of Parliament to make the surcharge a punishment. Konyer quoted then federal Justice Minister Rob Nicholson introducing the legislation by saying it would send the message that criminals must pay for the harm they cause their victims.

“The enactment of this legislation is a considered decision by Parliament to increase the sentence, the punishment, imposed on offenders,” argued Konyer.

Ontario Court Justice David Paciocco is expected to deliver his ruling on the constitutionality of the mandatory surcharge on Sept. 15.

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